Breaking News

Justice Souter’s Retirement and Where We Go from Here

Legal Washington’s best-kept secret leaked this afternoon, and by 10pm Pete Williams and then Nina Totenberg had confirmed that Justice Souter intends to retire.  That fact – or presumed fact, given how the message was communicated to the White House – was very closely held there, at the Senate, and at the Court – closely enough that preparations for the nomination of a successor were substantially restrained – among a group that not only was under strict orders but also genuinely appreciated both the Justice’s privacy and his efforts to signal his intentions in advance to the President and the Senate Judiciary Committee.  The future of the Court is a sufficiently explosive topic that a leak over time unfortunately became essentially inevitable, particularly given that it was a known fact by at least some at the highest levels of each branch of government.  It was in fact only a coincidence of timing that the secret held until after arguments for this Term concluded yesterday.

It is pure speculation to say why the Justice decided to retire now.  He is a private man, and those of us who do not talk with him – which includes perhaps every pundit – ought to acknowledge the severe limits on what we actually know rather than presume and infer.  But it is no stretch to say that it was likely an easier decision for him than it has been for many of his predecessors.  Justice Souter’s sense of self has never seemed bound up in his status.  It is likely that once it became clear that Justice Ginsburg would fully recover and serve for many years more, this seemed like an appropriate time to retire from the Court.

Justice Souter still may offer no confirmation that tonight’s stories are correct, much less a formal resignation.  His concern is for the institution, and the last thing he will have wanted is to draw attention to himself and to create a distraction while the Term continues.  He provided a signal, and likely hoped for the best that it would stay confidential.  On the other hand, he is not one for gamesmanship and, assuming his mind truly is finally decided, may conclude that it is best to be done with any remaining ambiguity.  The model of Justices O’Connor and Marshall – a resignation effective upon the confirmation of a successor (almost certainly this summer) – seems the most likely path he would take, given that there is no urgency to his departure.

At the White House (where counsel were aware and at work) and the Senate Judiciary Committee (where they were not), the pace of discussions and preparations for a successor will now increase considerably.  And that is where most of the attention of the press and the public will immediately turn – forwards, rather than reflecting back on the Justice and his work.  He won’t mind, but it is still too bad.  Washington always angles for a leak (tonight) and a fight (this summer).  This is the point at which the collegiality and insularity of the Court meet the competitiveness of the media and vindictiveness of partisan politics.

Justice Souter obviously has a significant legacy at the Supreme Court.  I will mention some of the cases in a moment.  But it is important to pause and recognize he will go down in history as a gentleman and (rare these days) a scholar who (even more rare) sees no need to show that fact off.  He has the kindness of Justice Stevens and the smile of the late Justice Brennan, but he also is perfectly capable of confronting an advocate who was out-and-out wrong.  He is respectful but direct.  You know where you stand with him.  His colleagues and the Court staff will miss him when he leaves.

So far, he has written 156 majority opinions for the Court.  There isn’t the space here – or the time for reflection – to catalog them in order of importance or interest.  But in constitutional law, his opinion for five Justices in McCreary County v. ACLU, 545 U.S. 844 (2005), stands at the knife’s edge of stating a controlling rule of law in Establishment Clause cases that may not survive the departure of Sandra Day O’Connor.  His opinion in the right of speech and association in Hurley v. Irish-American, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), is among the most often cited in the field.  For a time, he was a member of a majority to more broadly uphold campaign finance regulation, as reflected in his opinions in FEC v. Beaumont, 539 U.S. 146 (2003), FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431 (2001), and Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (1999).  For a man with a somewhat distant relationship with technology, his opinion in MGM Studios v. Grokster, 545 U.S. 913 (2005), is surpassingly important to the future of copyright, and opinions like Verizon Comms. v. FCC, 535 U.S. 467 (2002), play a central role in telecommunications regulation.  Others decided critical questions of procedure.  The defense bar hopes that Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), is a landmark ruling on the obligation to set forth detailed allegations in a complaint.  Beyond his opinions, the Justice’s vote has often been essential, as when he played a central role in the troika in Planned Parenthood v. Casey, 505 U.S. 833 (1992), that upheld the core of Roe v. Wade.

Justice Souter’s 123 dissenting opinions also tell you a great deal about him and his leading role, particularly among the Justices on the left, on the Court.  In fact, with greater control over his own writing assignments, the Justice’s own opinions in the very most significant cases tended to be in dissent.  This Term, for example, he has written the lead dissent in some of the Court’s most difficult and divisive cases – 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009), Bartlett v. Strickland, 129 S. Ct. 1231 (2009), and Waddington v. Sarausad, 129 S. Ct. 823 (2009).  Particularly significant, but often overlooked, is his dissent in Kansas v. Marsh, 548 U.S. 163 (2006), which was the strongest statement by the left of the Court of their concerns with the death penalty arising from evidence that wrongly convicted individuals were being executed.

What next then?  The President must pick a nominee under overhanging threats and bombast from both the left (which fears disappointment) and the right (which has no genuine influence on the process, but recognizes the great importance of the Court).

So first we learn about the President.  It seems obvious to me that he is focused on qualifications.  By contrast, we have very little to go on in terms of the weight the President places on ideology in judicial nominations, which is a big deal.  Judge Diane Wood and Professor Pam Karlan are both Democrats and geniuses, but they see a reasonable amount of the law differently.

Progressives come to this nomination with admiration for President Bush’s (eventual, in one instance) ability to identify and confirm exceptionally qualified nominees who also hold strong jurisprudential views that (in the case of Justice Alito) moved the Court.  They contrast that commitment to shaping the Court with what they remember as President Clinton’s unwillingness to invest his “capital” in liberal nominees in the mold of Bill Brennan and Thurgood Marshall.  They will want to believe that the make-up of the Senate – particularly given the coincidentally timed switch of Senator Specter to the Democratic Party and the anticipated arrival of Al Franken – gives the Administration essentially a free hand to appoint whomever it wants.  And they will believe that it is possible that the same may not be true by the time another nomination rolls around in later years.  Progressives will push very hard.

We can say that it has to be a woman.  The gender imbalance on the Court is absurd, and the Administration will like the perceived contrast with President Bush’s failure to address it.  Race and ethnicity seem less important.  As the best known Hispanic judge appointed by a Democrat, Sonia Sotomayor will be seriously considered.  But she will only be nominated if the President genuinely believes her to be the best candidate; racial politics can be addressed through other nominations.

So, who?  Who knows?  Given my premise that qualifications are extremely important – i.e., that the President will want to pick someone who stacks up evenly with the Chief Justice and Justice Alito – a truly shocking surprise is very unlikely.  The number of people who have the horsepower and reputation to truly deserve a Supreme Court appointment is pretty small.  My most recent post on this speculation is here, and I don’t have much to add to it.  (The President and I don’t talk as often as we should.)  I said then that “[t]he three obvious candidates are Elena Kagan (SG), Sonia Sotomayor (CA2), and Diane Wood (CA7). The sleeper candidate is Michigan Governor Jennifer Granholm.”  Governor Granholm subsequently said she was not interested, but you never know.  Through all his Chicago ties, including to the University of Chicago Law School, the President will be very familiar with Judge Wood’s reputation for brilliance.  The President also knows Elena Kagan (who has her own Chicago ties) and the Administration will be very conscious of the fact that General Kagan is ten years younger and has the reputation from Harvard of working very well and persuasively among an ideologically diverse group.

The President will be personally invested and involved.  I think it will come down to interviews between Wood, Kagan, Sotomayor, and two more out-of-the-box candidates, perhaps one with significant political experience and another who is a progressive visionary.  And the President will decide personally based on his own very individual view of how he wants to shape the Court.  There is no rush to make an announcement.  The Term will conclude at the very end of June, and it makes no sense – and there is no pressure – to announce a choice for a successor before the Justice has completed this Term’s work.  That leaves two months, which is plenty of time, and the President can reasonably be expected in very early July to name his nominee.  Hearings would be held in early or mid- August (the Administration and Senate Democrats will want them sooner rather than later, in order to not leave the nominee hanging), when the rest of Washington hoped to be on vacation away from the heat.

Cross-posted at The New Republic